394
Thomas, J., dissenting
after the enactment of this statute, Virginia's General Assembly embarked on a campaign of "massive resistance" in response to Brown v. Board of Education, 347 U. S. 483 (1954). See generally Griffin v. School Bd. of Prince Edward Cty., 377 U. S. 218, 221 (1964); Harrison v. Day, 200 Va. 439, 448-454, 106 S. E. 2d 636, 644-648 (1959) (describing massive resistance as legislatively mandated attempt to close public schools rather than desegregate).
It strains credulity to suggest that a state legislature that adopted a litany of segregationist laws self-contradictorily intended to squelch the segregationist message. Even for segregationists, violent and terroristic conduct, the Siamese twin of cross burning, was intolerable. The ban on cross burning with intent to intimidate demonstrates that even segregationists understood the difference between intimidating and terroristic conduct and racist expression. It is simply beyond belief that, in passing the statute now under review, the Virginia Legislature was concerned with anything but penalizing conduct it must have viewed as particularly vicious.
Accordingly, this statute prohibits only conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that
taught in the same school"); Va. Code Ann. § 24-120 (1969) (repealed 1970) (required separate listings for "white and colored persons" who failed to pay poll tax); Va. Code Ann. § 38-281 (1950) (repealed 1952) (prohibited fraternal associations from having "both white and colored members"); Va. Code Ann. § 53-42 (1967) (amended to remove "race" 1968) (required racial separation in prison); Va. Code Ann. § 56-114 (1974) (repealed 1975) (authorized State Corporation Commission to require "separate waiting rooms" for "white and colored races"); Va. Code Ann. § 56-326 (1969) (re-pealed 1970) (required motor carriers to "separate" their "white and colored passengers," violation was misdemeanor); §§ 56-390 and 56-396 (re-pealed 1970) (same for railroads); § 58-880 (repealed 1970) (required separate personal property tax books for "white[s]" and "colored").
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